Land and Environment Court New South Wales Medium Neutral Citation: Bunnings Group Limited v Fairfield City Council [2018] NSWLEC 1602 Hearing dates: Conciliation conference on 7 November 2018 Date of orders: 20 November 2018 Decision date: 20 November 2018 Jurisdiction: Class 1 Before: Dickson C Decision: See [7] below Catchwords: DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders Legislation Cited: Environmental Planning and Assessment Act 1979 Fairfield Local Environmental Plan 1994 Land and Environment Court Act 1979 State Environmental Planning Policy (Infrastructure) 2007 Category: Principal judgment Parties: Bunnings Group Limited (Applicant) Fairfield City Council (Respondent) Representation: Solicitors: F Rourke, Allens Linklaters (Applicant) A Seton, Marsdens Law Group (Respondent) File Number(s): 2018/124066 Publication restriction: No Judgment COMMISSIONER: 1. This is an appeal made pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) by Bunnings Group Limited against the deemed refusal by Fairfield City Council of Development Application No. DA-26/2017. The application principally seeks consent for the change of use of the existing building which operated as a bulky goods salesroom to a shop (Kmart) and refreshment room (Café). There are also minor demolition and construction works proposed along with new signage. The development is proposed at 21 Bonnyrigg Avenue, Bonnyrigg (Lot 1 DP 1000137). In exercising the functions of the consent authority on the appeal, the Court has the power to determine the development application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act) between the parties, which has been held on 7 November 2018. I presided over the conciliation conference. 3. Following the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to them. The decision agreed upon is to uphold the appeal and to grant development consent subject to conditions of consent, pursuant to s 4.16(1) of the EPA Act. 4. As the presiding Commissioner, I am satisfied that the decision is one that the Court can make in the proper exercise of its functions (this being the test applied by s 34(3) of the LEC Act). I have formed this state of satisfaction for the following reasons: 1. The proposed development is identified as 'Traffic generating development' in accordance with cl 104 of State Environmental Planning Policy (Infrastructure) 2007. I am satisfied the relevant notice was provided to Roads and Maritime Services and as required by cl 104(2A)(b), Council has taken into consideration their response. Pursuant to cl 104(3), Council raises no issues with the accessibility of the site or any potential traffic safety, road congestion or parking implications of the development. 2. The uses proposed by the development are permissible by virtue of cl 25H(3) of the Fairfield Local Environmental Plan 1994, despite the uses of 'shop' and 'refreshment room' being otherwise prohibited in the 4(c) Special Industrial Zone. 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. In making the orders to give effect to the agreement between the parties, the parties have not raised and I am not aware of any jurisdictional impediment to the making of these orders. Further, I was not required to make, and have not made, any assessment of the merits of the development application against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act. 3. The final orders to give effect to the parties' agreement under s 34(3) of the Court Act are: 1. The Applicant is granted leave to amend Development Application No. 413.1/2017 and to rely upon the following amended plans and documents: Document Reference Prepared by Dated Proposed Layout (Plan) KS-14 KMart Australia Pty Ltd 07/11/2018 Proposed Layout (Elevations) KS-15 KMart Australia Pty Ltd 07/11/2017 Sewer Drainage Plan 02023_202 Rev B C&M Consulting Engineers 2/11/2018 Stormwater Drainage Plan 02023_201 Rev A C&M Consulting Engineers 21/09/2018 Hardscape Plan 2406 LP-01.1 Rev C John Lock & Associates 20/07/2018 Hardscape Details 2406 LP-03.1 Rev B John Lock & Associates 20/08/2018 Waste Management Letter - KMart Australia Ltd 30/10/2018 [Note: As the parties agree that the amendments shown in the above plans are minor, no order is required to be made under s 8.15(3) of the Environmental Planning and Assessment Act 1979 (NSW).] 1. The appeal is upheld. 2. Development consent is granted to Development Application No. 413.1/2017 seeking consent for the change of use from a bulky goods salesroom (Bunnings) to a shop (K-Mart) and refreshment room (café) and associated alterations, internal fit-out (excluding café fit-out) and landscaping works on the land at 21 Bonnyrigg Avenue, Bonnyrigg subject to the conditions of consent annexed hereto and marked "A". ………………………. D M Dickson Commissioner of the Court Annexure A (formatted) (92.8 KB, pdf) Amended Plans (6.24 MB, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2018